Court of Appeals: Officer testimony doesn’t taint plea agreement

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When the state enters a plea agreement, is it breached when a Milwaukee police officer — shot while serving the no-knock warrant — testifies at the sentencing hearing that the defendant should get the maximum prison term?

In the recently issued appellate opinion State of Wisconsin v. London Mack Stewart, 2012 AP 1457, the court said that two officers had a right to testify, and the plea agreement had not been violated because the officers were not testifying in their capacity as law enforcement officers.

“The officers were speaking as victim(s), not as agents for the state,” the appellate court wrote. Even if there was some effect on the court, it did not rise to the level of a substantial and material breach of the plea agreement.

Case history

In the early hours of Sept. 30, 2009, the Milwaukee police officers tried to execute a search warrant on a known drug house at 3217 N. 12th St. Inside, London Mack Stewart grabbed a gun and shot at the door where several Milwaukee officers were trying to force their way inside.

Officer James Jekanoski took a bullet in right arm, and a second bullet narrowly missed officer Dennis Justus while both men pushed through the doorway.

Stewart originally was charged with five felony counts, including reckless injury with a dangerous weapon and felony gun possession, all as a repeat offender.

Defense counsel worked out a plea agreement with the state that dropped two counts, with a recommended global penalty of 15 years initial imprisonment and 10 years supervised probation.

At Stewart’s sentencing hearing, Judge Patricia McMahon expressed her belief that Jekanoski and Justus had been affected by the shooting.

The shooting “clearly affected [Jekanoski] emotionally,” McMahon said during the hearing. “There are scars that are perhaps more permanent, far more serious … than anything physical that Mr. Stewart could have done on that morning.”

Trial counsel for Stewart did not object when the judge described the officer’s written statements, or during Jekanoski’s and Justus’ testimonies during the sentencing hearing.

Ultimately, McMahon did not follow the state’s sentencing recommendation. Instead, she sentenced him to 15 years initial imprisonment followed by 10 years supervised on the first count; 10 years initial imprisonment followed by 10 years supervised, to be served consecutive to the first count, on the second count; and five years initial imprisonment on count three, to be served concurrent to counts one and two, but consecutive to any other sentences.

Stewart appealed, claiming the terms of a negotiated plea agreement are a constitutionally protected and enforceable due process right; and that Stewart had ineffective assistance of counsel. He also asked for specific performance on the plea deal.

According to defense counsel, the state violated the terms of that agreement when the officers testified and when the state “ratified” their statements.

The Matson defense

The defense primarily relied upon the Wisconsin v. Matson, WI APP 253, a 2003 case where a police detective’s letter to the court written on police stationary was found to be a breach of the state’s plea agreement.

In that case, defendant Leonard Matson was charged with abducting a child and burglary, also as a habitual offender. Matson reached a plea agreement with the state, which reduced the child abduction severity and outright dismissed a misdemeanor theft charge.

After the plea agreement was made in the Matson case, but before sentencing, the primary investigating detective wrote a five-page letter to the court, describing why he could not support the plea agreement. The letter stated, “I request the maximum sentence on all charges, to ensure protection of the community.”

Though Matson’s counsel objected to the letter, the judge denied the request, saying that he had read the letter, “but not seriously.”

The court sentenced Matson to a 25-year maximum sentence on the abduction, with a 15-year consecutive sentence on the burglary; well in excess of the negotiated plea.

In overturning the circuit court in Matson, the Wisconsin Supreme Court ruled that because the investigating detective’s letter was written on police stationary, it suggested that the opinion expressed was ratified by the state.

In the Stewart case, defense counsel highlighted the similarities with Matson, showing that the state “cannot do indirectly what it promises not to do directly.” Namely, undermining the plea agreement.

But the appellate court affirmed the lower court’s sentence, saying that the victim status of both officers distinguished the case from Matson.

“In Wisconsin, every crime victim has the right to make a statement to the court at disposition,” the appellate court wrote, referring to both Wis. Const. Art. 1, Sect. 9m, and Wis. Stat. Sec. 950.1. This right is not to be viewed casually, the court continued, and should be honored and protected as vigorously as those safeguards intended to protect criminal defendants.

“Neither 950.01 or the Wisconsin Constitution except police officer crime victims from the right to provide an impact statement at sentencing,” the court explained.

In response to the defense argument that the state ratified the officers’ written statements and testimony, and thus undermined the plea deal, the court indicated that State v. Harvey showed that the state could supply information that supported a harsher sentence, even with a plea deal in place.

Defense counsel argued, however, that the prosecuting attorney’s reference of Justus’ comments during sentencing went far beyond just presenting information.

“I like the way Officer Justus puts it,” the attorney stated. “When he submitted his information to the court, he says ‘There [are] no do-overs.’”

That conduct, according to defense counsel, “was the absolute epitome of an end run around the plea bargain.”

The appellate court was unmoved, responding that although the prosecutor in State v. Harvey did disavow certain statements that could affect the plea agreement, it was not required to do so.

“Plea agreements like the one here do not prevent a prosecutor from supplying information that supports a harsher sentence,” the appellate court wrote. “The state can still inform the circuit court of aggravating factors.”